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2016 DIGILAW 2602 (ALL)

RAJPAL SINGH v. STATE OF U. P.

2016-07-28

ALOK KUMAR MUKHERJEE, BHARAT BHUSHAN

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JUDGMENT Hon’ble Bharat Bhushan, J.—Appellant Rajpal Singh stood charged under Sections 302 of the Indian Penal Code (in short “IPC”). Learned Sessions Judge convicted the appellant under Sections 302 and 411 IPC and sentenced him to undergo rigorous imprisonment for life and two years respectively vide judgement and order dated 12.10.1983 in Session Trial No. 131 of 1983 (State v. Rajpal Singh) arising out of Crime No. 152 of 1982, Police Station (P.S.) Islamnagar, District Budaun. 2. The prosecution case is that deceased Sunder Singh was a resident of Islamnagar, District Budaun. Informant Mahendra Singh (P.W.-1), is the son of the deceased. Accused/appellant Rajpal Singh is the husband of elder sister of wife of informant Mahendra Singh. He was a resident of village Raheria, Police Station Wazirganj, District Badaun. It is alleged that deceased Sunder Singh had sold some of his property for Rs. 13,000/-. Accused/appellant Rajpal Singh was aware of this fact. On 15.9.1982 at about 11.00 a.m. deceased Sunder Singh and accused/appellant Rajpal Singh together left the house of the informant for depositing a sum of Rs. 2000/- in the Bank. It is stated that accused/appellant Rajpal Singh alone returned to the house of deceased Sunder Singh at about 4.00 p.m. and immediately left saying that he is going to the village Chhapra of his sister. Sunder Singh did not return till late in the night, therefore, the family was alarmed. On the following morning, informant Mahendra Singh contacted accused/appellant Rajpal Singh (brother-in-law, Sarhu of the informant) at his residence at village Raheria. Rajpal Singh explained that deceased Sunder Singh had left him at Bus Station, Islamnagar saying that he was going towards village Sithauli. 3. Informant Mahendra Singh and accused/appellant Rajpal Singh contacted one astrologer, who initially predicted the death of Sunder Singh and thereafter at the signal of Rajpal Singh told them that Sunder Singh would return in 4-5 days. 4. Sunder Singh did not return even after 4-5 days, therefore, informant Mahendra Singh lodged an First Information Report (F.I.R.) on 21.9.1982 at about 4.10 p.m. at Police Station Islamnagar, District Budaun disclosing above mentioned facts and expressing his suspicion that his brother-in-law (Sarhu) Rajpal Singh had probably killed his father for the greed of Rs. 2000/-. 5. Investigating Officer (I.O.) Mahi Lal (P.W.-6), apprehended accused/appellant Rajpal Singh at the Bus Station, Islamnagar. 2000/-. 5. Investigating Officer (I.O.) Mahi Lal (P.W.-6), apprehended accused/appellant Rajpal Singh at the Bus Station, Islamnagar. On interrogation, the appellant allegedly admitted the commission of murder of deceased Sunder Singh and offered to take the police to the place where body of the deceased Sunder Singh was lying and also where he had concealed Rs. 2000/- grabbed from the deceased and he also informed that he has buried Rs. 2000/- near the temple of Bankhandi. On this disclosure, the I.O., took accused to the sugar cane field of one Sharafat, where at the instance of accused/appellant Rajpal Singh, the corpse of deceased Sunder Singh was recovered on 22.9.1982 at about 11.00 a.m. Recovery memo of the corpse of the deceased is available on record as Exhibit Ka-3. Thereafter, appellant took the police and the witnesses to a place near Bankhandi temple and at his pointing out a small plastic bag was recovered containing Rs. 2000/-, from below the bricks at about 3.00 p.m. on the same day. Recovery memo is available on record as Exhibit Ka-10. Further investigation revealed presence of some witnesses, who had last seen the deceased in the company of the accused/appellant and other witnesses, who had seen the appellant near Bankhandi temple on the same date. Finding sufficient evidence against the accused/appellant, I.O., submitted charge-sheet against the accused/appellant under Sections 364/302/394 and 201 IPC. 6. The then Sessions Judge, Budaun framed charges under Sections 302 and 411 IPC against the accused/appellant Rajpal Singh on 13.6.1983. the accused denied both the charges and claimed to be tried. During course of trial, prosecution adduced evidences of P.W. -1 Mahendra Singh (informant), P.W.-2 Puttan Khan, P.W.- 3 Maqsood, P.W.-4 Mahavir, P.W.-5 Sukhey, P.W.- 6 Sub Inspector Mihi Lal, P.W.-7 Teekam Singh and P.W.-8 Dr. RD Abhi. Accused was examined under Section 313 of the Code of Criminal Procedure. He denied all the allegations. He claimed that he had been falsely implicated on account of perceived illicit relationship between wife of Mahendra Singh and accused. 7. Accused did not adduce any oral or documentary evidence in his defence. The Trial Judge concluded that there is satisfactory evidence against accused/appellant, which conclusively establish beyond reasonable doubt the complicity of appellant in the murder-in-question, therefore, the appellant was held guilty under Sections 302 and 411 IPC and accordingly sentenced vide impugned judgement and order dated 12.10.1983. 8. 7. Accused did not adduce any oral or documentary evidence in his defence. The Trial Judge concluded that there is satisfactory evidence against accused/appellant, which conclusively establish beyond reasonable doubt the complicity of appellant in the murder-in-question, therefore, the appellant was held guilty under Sections 302 and 411 IPC and accordingly sentenced vide impugned judgement and order dated 12.10.1983. 8. Heard Sri Ram Babu Sharma, learned counsel for the appellant and Sri Syed Ali Murtaza, learned AGA for the State. 9. It is evident that there is no direct evidence against accused/appellant Rajpal Singh. The prosecution case is based purely on circumstantial evidence. 10. Learned counsel for the appellant has submitted that there is no evidence to conclusively establish that deceased Sunder Singh was murdered. His dead body was found in a sugar cane field. The I.O., and the recovery witnesses have disclosed that the dead body of the deceased was lying in the sugar cane field in highly decomposed condition. The I.O., could not even ascertain the age of the deceased because of the decomposition of corpse. P.W. 8, Dr. RB Abhi could not even ascertain the cause of death on account of putrefaction of the dead body. However, he later on opined that because the hyoid bone and thyroid cartilage were found fractured, therefore, there was a possibility that the deceased had been strangulated prior to his death. 11. The doctor also stated that ligature mark was found around the neck of dead body. The same doctor also divulged in cross-examination that no ligature mark was found. He also admitted that a person can also die on account of suffocation without fracture of bone of neck. Strangulation also results in breakage of hyoid bone. Unfortunately, the doctor could not give definite opinion whether the hyoid bone was broken prior to the death of the deceased or after the death of the deceased. The testimony of P.W.-8, Dr. RB Abhi is not clear regarding the cause of the death. Body of the deceased was so putrefied that he could not find any mark of injury on the person of the deceased and also failed to ascertain the age of the deceased. The testimony of P.W.-8, Dr. RB Abhi is not clear regarding the cause of the death. Body of the deceased was so putrefied that he could not find any mark of injury on the person of the deceased and also failed to ascertain the age of the deceased. The entire suspicion regarding strangulation is based on the fracture of the hyoid bone and thyroid cartilage but unfortunately, the doctor could not definitely ascertain that the fracture of bone of the neck took place prior to the death of the deceased or after the death of the deceased. His testimony is very contradictory regarding presence of ligature mark also. Autopsy report indicate that ligature mark was found around the neck of the deceased but in his cross-examination he conceded that he did not find any ligature mark around the neck of the deceased. In fact, prosecution evidence discloses that identification of the deceased was primarily done on the basis of clothes worn by the deceased at the time of departure from his house. We believe that it cannot be conclusively said that the deceased was murdered in the light of vague and uncertain testimony of doctor. 12. The first circumstance relied upon by the prosecution is based on the evidence of P.W.-1 Mahendra Singh. He says that deceased Sunder Singh left the residence alongwith accused/appellant Rajpal Singh on 15.9.1982 for depositing Rs. 2000/- in the Bank. At about 4.00 p.m. Rajpal Singh came back alone to the residence and left immediately saying that he had to visit Chhapra, the village of his sister. P.W.-1 Mahanedra Singh had admitted that he was not present when Rajpal Singh alone came back to his residence. Fact of the matter is that there is no specific averment by the informant that he was present when deceased Sunder Singh and accused/appellant Rajpal Singh departed from his residence at about 11.00 a.m. The story of sole arrival of Rajpal Singh in the evening entirely depends on the hearsay evidence of P.W.-1 Mahendra Singh. In the absence of any specific averment that deceased Sunder Singh and accused/appellant Rajpal Singh together left in the morning at about 11.00 a.m. for depositing the money in the Bank in the presence of Mahendra Singh, this part of story can only be assumed. The story of simultaneous departure of deceased and accused is also based on rather weak evidence. The story of simultaneous departure of deceased and accused is also based on rather weak evidence. Mahendra Singh, could have specifically mentioned that both accused/appellant and deceased left his residence in the morning in his presence but he has not said this. Even if, it is assumed that deceased and accused/appellant left the residence in the morning together, it is evident that there is no evidence on record to demonstrate that accused /appellant Rajpal Singh again came back in the evening at about 4.00 p.m. because this time it has been specifically stated by Mahendra Singh that he was not present at 4.00 p.m. at his residence. 13. Now the question is who informed him of sole arrival of accused/appellant Rajpal Singh at about 4.00 p.m. in the evening? He has not even disclosed the name of that person, who had given this information to him. This information is essential, as informant was not present at that time. 14. P.W.-1 Mahendra Singh has also not given any reasonable and satisfactory explanation for lodging of the F.I.R., after one week. His father disappeared on 15.9.1982 with considerable amount of money. He was aware of the person, with whom the deceased had left. This witness has stated that he contacted Rajpal Singh on the following day. He insists that some person had also seen them and yet no information was given to the police regarding disappearance of his father by Mahendra Singh for one full week. He waited for almost six-seven days for lodging the F.I.R. Thus there is no satisfactory explanation for lodging of F.I.R., with considerable delay. 15. The testimony of P.W.-1 Mahendra Singh does not inspire confidence on account of several discrepancies. He has also not disclosed the name of the astrologer, who had informed him that his father would be coming back within 4-5 days. This astrologer has not been arrayed as witness nor has the astrologer been produced as witness during the course of trial. Interestingly, P.W.-1, Mahendra Singh i.e., son of the deceased says that after the arrest of Rajpal Singh, the body of the deceased was discovered in his presence and that the inquest report was also prepared in his presence. He claimed that he put thumb impression upon the inquest report as a witness. Interestingly, P.W.-1, Mahendra Singh i.e., son of the deceased says that after the arrest of Rajpal Singh, the body of the deceased was discovered in his presence and that the inquest report was also prepared in his presence. He claimed that he put thumb impression upon the inquest report as a witness. He categorically denied the suggestion that he did not witnessed the discovery of the dead body of his father or that he did put thumb impression on the inquest report. He again claimed that he was present at the time of discovery of the dead body. On the contrary, inquest report, exhibit Ka-4, does not contain the thumb impression of the informant. The inquest report was signed by five witnesses namely; Sardar Saheb, Preetam Singh, Jabbar Ali, Hamid Ali, Miya Jan Khan. There is no reference of presence of P.W.-1 Mahendra Singh during the discovery of the dead body of the deceased. The question is why informant Mahandra Singh (P.W.-1) is claiming his presence at the time of discovery of the dead body of the deceased? and also why he is insisting that he had signed the inquest report? P.W.-6 I.O. Mihi Lal, has not supported this claim of Mahendra Singh. P.W.-6 Mihi Lal has stated that Rajpal Singh was arrested on the Bus Station, Islamnagar, Budaun at about 10.00 a.m. in the morning on an information furnished by one informant in the presence of Maqsood and Mahavir. As soon as the accused/appellant was arrested, he offered to show the places where he had allegedly thrown the dead body of Sunder Singh and buried Rs. 2000/-. I.O. gathered two witnesses namely, Sukhey and Ram Kumar and took them to the sugar cane field of Sharafat. The dead body was allegedly recovered at the instance of the accused/appellant. In fact, the evidence of the I.O., discloses that the statement of Sharafat was recorded though Sharafat has not been produced during the course of trial. In our opinion Sharafat was very important witness. The dead body was recovered from his sugar cane field. He would have been in a very good position to disclose or to give evidence regarding recovery of body of the deceased. In our opinion Sharafat was very important witness. The dead body was recovered from his sugar cane field. He would have been in a very good position to disclose or to give evidence regarding recovery of body of the deceased. It is pertinent to point out, that defence has claimed that body of the deceased was recovered from the sugar cane field of Sharafat on the information given by Sharafat or somebody on his behalf and thereafter Rajpal Singh was implicated on account of prior tensions of the family. In this scenario the testimony of Sharafat would have been very relevant. 16. Coming back to the testimony of P.W.-6 I.O. Mihi Lal, it is pertinent to point out that he has specifically denied the necessity of summoning of Mahendra Singh (P.W.-1) at the time of recovery of the dead body for identification purpose. A question was asked and he specifically stated that there was no necessity for summoning of Mahendra Singh for identification of the dead body of his father. It is relevant to point out that informant Mahendra Singh (P.W.-1) is the sole son of deceased Sunder Singh. Admittedly, both of them were living together peacefully. One married sister lived probably in district Moradabad, therefore, refusing to summon the only son of the deceased for identification purpose is very strange and surprising, especially in view of the fact the corpse of deceased was putrefied beyond recognition. 17. The I.O., has explained that the identification of the sole son was not required because several persons had identified the body of the deceased, though admittedly, this fact has not been mentioned in the case diary. In paragraph No. 11 of his testimony the I.O., has reiterated that apart of police personals and two witnesses, no other person was present at the Bus Station, Islamnagar, Budaun at the time of the arrest of the accused/appellant Rajpal Singh. He has even denied the presence of any of the shop keepers or even the rickshaw pullers. Though he has admitted that the son of deceased lives merely 200 yards away from the place of arrest of the accused/appellant. 18. In this connection, the testimony of P.W.-5 Sukhey is also important. P.W.-5 Sukhey stated that he was asked by police to witness the discovery of body of the deceased. He was also present at the time of recovery of Rs. 2000/-. 18. In this connection, the testimony of P.W.-5 Sukhey is also important. P.W.-5 Sukhey stated that he was asked by police to witness the discovery of body of the deceased. He was also present at the time of recovery of Rs. 2000/-. This witness in paragraph 7 of his testimony has specifically asserted that at the time of the recovery of the dead body only accused/appellant Rajpal Singh, I.O., Police Constable and one Panditji were present. No other person was present. He has again reiterated that even at the time of recovery of currency notes, only two witnesses i.e., one constable, one Sub Inspector (I.O.) and the accused/applicant were present. No other person was present and yet this does not explain the claim of the informant Mahendra Singh, son of the deceased that he was also present at the time of recovery of the dead body and he had in fact, signed the inquest report but this fact is not admitted either to by P.W.-5 Sukhey Lal or P.W.-6 Sub Inspector Mihi Lal (I.0.). There Is virtually no record of presence of the informant Mahendra Singh at the time of the recovery of the dead body of the deceased or at the time of alleged recovery of currency notes. 19. Prosecution has relied heavily on the testimony of P.W. -2 Puttan Khan. His name has been mentioned by P.W.-1 Mahendra Singh as well. Prosecution says that Puttan Khan had seen the deceased in the company of accused/appellant at Islamnagar Bus Station, 4-6 days prior to the recovery of the dead body while he was sipping tea at the Bus Station, Islamnagar, Budaun. In the story of circumstantial case, the evidence of Puttan Khan is very important because Puttan Khan had allegedly last seen the deceased in the company of accused on 15.9.1982 and subsequent to that the deceased could not be found till the discovery of his body. We believe that conduct of Puttan Khan is rather surprising. He saw accused Rajpal Singh in the company of the deceased on 15.9.1982. He has admitted in paragraph 3 of his evidence that he became aware of the disappearance of deceased Sunder Singh on the very next day. We believe that conduct of Puttan Khan is rather surprising. He saw accused Rajpal Singh in the company of the deceased on 15.9.1982. He has admitted in paragraph 3 of his evidence that he became aware of the disappearance of deceased Sunder Singh on the very next day. He further specified that he had informed wife of Sunder Singh i.e. mother of informant Mahendra Singh and Mahendra Singh himself, about this incident though he later on tried to wriggle out of this by saying that he had furnished this information after 5-6 days. Now we can again evaluate his both versions. If P.W.-2 Puttan Khan informed the family of the deceased including son of the deceased i.e. informant Mahendra Singh regarding the presence of the deceased in the company of accused/appellant Rajpal Singh, then the question is why was this fact not communicated to the police ? and why was the other story of visiting astrologer for finding the whereabouts of deceased created ? If the second version is correct i.e., the information was furnished by Puttan Khan after 5-6 days, then it begs the question why he remained silent for 5-6 days despite the admitted knowledge of disappearance of Sunder Singh on the very next day. He has not furnished any explanation for his silence for such a long period. These discrepancies, are very significant and they have not been explained by the prosecution and in our opinion non explanation of these discrepancies would adversely affect the prosecution case. 20. Two witnesses namely; P.W.-3 Maqsood and P.W.-4 Mahavir have deposed that they saw the accused appellant Rajpal Singh on the date of disappearance of the deceased near Bankhandi temple at about 3.00 p.m. This Maqsood also remained silent for pretty long time. He claims to live near the house of Sunder Singh. Admittedly, distance between two houses is merely 2-4 paces. Yet he did not give this information to family of the deceased for quite sometime. He claims that he was busy in his personal work and that he gave this information after 4-5 days to Mahendra Singh and his family. He has very casually stated that he could not give this information because he was busy. We are afraid that this explanation is not sufficient. The conduct of P.W.-3 Maqsood does not inspire confidence. Similarly, the testimony of P.W.-4 Mahavir is also not very trustworthy. He has very casually stated that he could not give this information because he was busy. We are afraid that this explanation is not sufficient. The conduct of P.W.-3 Maqsood does not inspire confidence. Similarly, the testimony of P.W.-4 Mahavir is also not very trustworthy. He is virtually neighbour of the deceased Sunder Singh and still he did not inform the family of the deceased regarding unusual presence of accused/appellant Rajpal Singh near the Bankhandi temple. 21. P.W. 3 Maqsood, P.W.-4 Mahavir and P.W.-5 Sukhey all have claimed that they knew accused/appellant Rajpal Singh because of their relationship with deceased Sunder Singh. Evidence discloses that Rajpal Singh was a frequent visitor to the residence of informant Mahendra Singh at Islamnagar. F.I.R., exhibit Ka-1 also claims that Rajpal Singh had been visiting the residence of the informant quite frequently at least since the sale of property of the deceased Sunder Singh. 22. Now coming back to the testimony of informant Mahendra Singh, P.W.-1 son of the deceased, this claim appears to be dodgy. P.W. -1 Mahendra Singh is the real brother-in-law (Sarhu) of accused/appellant Rajpal Singh. P.W.-1 Mahendra Singh has very categorically stated that he had no visiting relationship with accused/appellant Rajpal Singh at all. He has denied the suggestion of strain in the relationship with accused but very plainly testified that Rajpal Singh visited his residence for the first time on 15.9.1982 i.e., the day of disappearance of his father Sunder Singh. Meaning thereby, that the story given by other witnesses that Rajpal Singh had been frequently coming to Islamnagar on account of relationship with informant Mahendra Singh is false. Similarly, the claim of Mahendra Singh in F.I.R., that Rajpal Singh had been visiting their residence for last 12-13 days, insinuating that the accused/appellant suddenly started calling upon them because of his greed for Rs. 13,000/-, which deceased Sunder Singh had acquired after sale of his property, in contrary to his evidence on oath wherein he has conceded that accused/appellant Rajpal Singh came to his residence for first time on 15.9.1982 i.e., the day of disappearance of Sunder Singh. Not only that, Mahendra Singh has also stated that he had visited the residence of Rajpal Singh for the first time on the following day in order to enquire about his father. The village of Rajpal Singh was not nearby. Not only that, Mahendra Singh has also stated that he had visited the residence of Rajpal Singh for the first time on the following day in order to enquire about his father. The village of Rajpal Singh was not nearby. Admittedly, his village is about 14-15 Koss (about 44 Kms to 45 Kms). The incident occurred in the year 1982, when means of communication and existence of road network in rural Uttar Pradesh were virtually non existent, especially in smaller districts. Record discloses that body of the deceased was not identified by his son, Mahendra Singh. It was also not identified by any scientific method. The I.O., says that he got the deceased identified by other persons of the town. Evidence discloses that body of the deceased was in highly decomposed condition. In fact, proper autopsy could not be done. Cause of death could not be ascertained. Doctor failed to ascertain even the age of the dead body recovered. In these circumstances, stated identification of the corpse merely on the basis of clothes and the materials worn by the deceased was very risky, especially in the light of admission of I.O., that he did not have any record of clothes worn by the deceased at the time of his disappearance. Obviously, other people of the town were also not in a position to have the knowledge of clothes or other materials worn by the deceased at the time of the disappearance. 23. In these circumstances, it is strange that the police personnel did not prefer to get the body of the deceased identified either by the informant, the only son or the wife of the deceased. Record further discloses that there was a well nearby the place of recovery of the deceased. Learned counsel for the appellant has submitted it would have been much easier for the accused to dump the body in the well instead of leaving it in open field. 24. Learned counsel for the appellant has also argued that if the claim of informant Mahendra Singh is accepted that Rajpal Singh had visited his residence for the first time on the date of the incident i.e., 15.9.1982 then Rajpal Singh could not have been aware of the sudden acquisition of money by deceased, Sunder Singh. 24. Learned counsel for the appellant has also argued that if the claim of informant Mahendra Singh is accepted that Rajpal Singh had visited his residence for the first time on the date of the incident i.e., 15.9.1982 then Rajpal Singh could not have been aware of the sudden acquisition of money by deceased, Sunder Singh. He has further argued that it is highly surprising that the informant allowed his father to go to the local Bank with a person, who was visiting them for the first time while his major and sole son was available at the residence. Even if Mahendra Singh, himself was not present at the time of departure of his father, he could have been summoned by his father for accompanying him. 25. Learned AGA has opposed the appeal but could not contradict the points raised by the appellant’s counsel. 26. We have carefully examined all the materials on record. Circumstantial evidence available on record is not satisfactory. There are vast discrepancies between the statements of the witnesses. There are contradictions between the contents of the F.I.R., and the testimony of the witnesses. There is no logical and satisfactory explanation to wait for six days to lodge the F.I.R., regarding the disappearance of the father of the informant despite the fact that son became aware of the disappearance of his father on the same day. Evidence of Puttan Khan, Mahavir and Sukhey also do not inspire confidence. Attempt to manufacture and create evidence is palpable. We have a lingering doubt about the veracity of virtually all witnesses. We believe that the circumstances referred to by the learned Sessions Judge have not been established by plausible and satisfactory evidence. In addition to that the circumstances themselves are not sufficient to conclusively establish the guilt of accused beyond all reasonable doubt. In our opinion, the prosecution has not been able to establish either the motive on the part of the accused/appellant Rajpal Singh for committing the crime or the discovery of corpse of the deceased and recovery of money on the basis of so-called disclosure statement of Rajpal Singh. We have no hesitation to hold that prosecution has failed to prove its case beyond all reasonable doubt. 27. We believe that prosecution has failed to prove the guilty mind and the guilt of the accused. We have no hesitation to hold that prosecution has failed to prove its case beyond all reasonable doubt. 27. We believe that prosecution has failed to prove the guilty mind and the guilt of the accused. There are various doubts and suspicious circumstances which have dislodged the chain of the circumstantial evidence. On the basis of such weak evidence, judgement of trial Court, convicting the appellant is not sustainable. We, therefore, believe that the accused Rajpal Singh is entitled to benefit of doubt. We, accordingly, set aside the conviction and sentence of accused/appellant Rajpal Singh and acquit him of charges levelled against him under Sections 302 and 411 IPC. 28. The appeal, accordingly, is allowed. The judgement and order dated 12.10.1983 passed by the then Sessions Judge, Budaun in Session Trial No. 131 of 1983 (State v. Rajpal Singh), arising out of Crime No. 152 of 1982, under Sections 302 and 411 IPC, Police Station Islamnagar, District Budaun is set aside. Appellant Rajpal be set at liberty unless required in any other case. 29. Copy of this order be sent to the Court concerned for compliance within fifteen days from today. Thereafter, concerned Court shall report compliance within one month. ——————